Taylor #120631 v. Woods, et al

Filing 49

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 47 ; motion for summary judgment 32 is GRANTED IN PART and DENIED IN PART; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ALAN TAYLOR,
Plaintiff,
Case No. 2:17-cv-85
v.
HON. JANET T. NEFF
JEFFREY WOODS, et al.,
Defendants.

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OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. The only claims
remaining in the case are Plaintiff’s First Amendment retaliation claims against Defendants
Timothy Ross and James Lumsden. Defendants Ross and Lumsden filed a motion for summary
judgment.

The matter was referred to the Magistrate Judge, who issued a Report and

Recommendation (R&R), recommending that this Court grant in part and deny in part the motion.
The matter is presently before the Court on Plaintiff’s objections to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the
Court has performed de novo consideration of those portions of the Report and Recommendation
to which objections have been made. The Court denies the objections and issues this Opinion and
Order.
Plaintiff presents five objections to the Magistrate Judge’s Report and Recommendation.
First, Plaintiff challenges the Magistrate Judge’s analysis of the protected conduct element of his
retaliation claim. Plaintiff argues that the Magistrate Judge erred in determining that Plaintiff was

not engaged in protected conduct with regard to the two misconduct charges to which he pleaded
guilty (Pl. Obj., ECF No. 48 at PageID.445). Plaintiff emphasizes that he was “coerced” into
pleading guilty to the misconducts and argues that, under the case law, “[a] coerced guilty plea for
a minor misconduct should not ‘automatically bar a plaintiff’s [retaliatory] claim” (id. at
PageID.446, quoting Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018)).
Plaintiff’s objection is properly denied. The Sixth Circuit in Maben more precisely held
that “[a] finding of guilt at a prison misconduct hearing does not act as an absolute bar to a
prisoner’s First Amendment retaliation claim.” 887 F.3d at 262 (emphasis added). Further, the
Sixth Circuit expressly recognized that “if a prisoner violates a legitimate prison regulation, he is
not engaged in ‘protected conduct’….” Id. at 266 (citation omitted). Although Plaintiff argues
that he was “coerced” into admitting he violated prison regulations by the threat of “more severe
sanctions,” that is the nature of every plea. As the Supreme Court has stated, “confronting a
defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the
defendant’s assertion of his trial rights, [but] the imposition of these difficult choices [is] an
inevitable’—and permissible—‘attribute of any legitimate system which tolerates and encourages
the negotiation of pleas.’” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Chaffin v.
Stynchcombe, 412 U.S. 17, 31 (1973)). Accordingly, Plaintiff’s argument demonstrates no error
in the Magistrate Judge’s holding that “Plaintiff was not engaged in protected conduct with respect
to the two misconducts that he admitted to violating the prison rules” (R&R, ECF No. 47 at
PageID.441).
Second, Plaintiff argues that the Magistrate Judge “overlook[ed] the intimidating and
retaliatory statements made by Defendant Ross on said first May 19th, 2016 minor misconduct,”
statements Plaintiff opines are “certainly an indication that Ross was retaliating against Plaintiff,

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despite Plaintiff’s coerced guilty plea” (Pl. Obj., ECF No. 48 at PageID.446). Again, for the
reasons previously stated, Plaintiff’s argument demonstrates no error in the Magistrate Judge’s
holding that Plaintiff was not engaged in protected conduct with respect to the misconducts to
which he pleaded guilty. Plaintiff’s second objection is properly denied.
Third, Plaintiff challenges the Magistrate Judge’s statement that the “hearing process is not
as one-sided as Plaintiff suggests” (Pl. Obj., ECF No. 48 at PageID.446; R&R, ECF No. 47 at
PageID.441). According to Plaintiff, “[b]oth Ross and Lumsden are well-known for being very
vindictive towards inmates to say the least” (Pl. Obj., ECF No. 48 at PageID.447). Plaintiff’s
objection is properly denied. The Magistrate Judge’s statement was merely an observation about
the fact that Plaintiff was found guilty of only two of the three misconducts to which he did not
enter a guilty plea. Further, Plaintiff’s challenge to this observation by the Magistrate Judge fails
to demonstrate any error in the Magistrate Judge’s ultimate holding.
Fourth, Plaintiff objects to the Magistrate Judge’s recommendation that Plaintiff’s
retaliation claim against Defendant Lumsden should be dismissed because Plaintiff made only
“conclusory allegations of retaliation against Defendant Lumsden” (Pl. Obj., ECF No. 48 at
PageID.447; R&R, ECF No. 47 at PageID.441). Plaintiff argues that the Magistrate Judge
“overlooked” (1) “the fact that Lumsden made retaliatory comments toward Plaintiff when
Plaintiff was being reviewed on the Class I major misconduct,” (2) Plaintiff’s “handwritten
diagram showing how his wall locker was securely bolted to the wall,” and (3) that Plaintiff
“alluded” in his Verified Complaint to his contention that “Lumsden planted the razor” behind the
locker (Pl. Obj., ECF No. 48 at PageID.447-448). According to Plaintiff, the Magistrate Judge
was “splitting hairs by being far too strict and unreasonable” (id. at PageID.448).
Plaintiff’s objection is properly denied.

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“The summary judgment hurdle is not insubstantial.” Thaddeus-X v. Blatter, 175 F.3d 378,
399 (6th Cir. 1999). As observed by the Magistrate Judge, “bare allegations of malice” are
insufficient to state a constitutional claim, as Plaintiff must instead establish “that his protected
conduct was a motivating factor” behind the allegedly retaliatory action taken (R&R, ECF No. 47
at PageID.441, quoting Thaddeus-X, 175 F.3d at 399 (citations omitted)). Plaintiff’s objection,
which itself delineates only conclusory allegations, does not serve to demonstrate any factual or
legal error in the Magistrate Judge’s analysis or conclusion. Plaintiff’s objection is properly
denied.
Last, regarding the Magistrate Judge’s recommendation that “to the extent Plaintiff asserts
any of his claims for money damages against Defendants in their official capacities, those claims
should be dismissed” (R&R, ECF No. 47 at PageID.443), Plaintiff indicates that “the Eleventh
Amendment does not apply” because “Defendants Ross and Lumsden …are being sued in their
individual capacities” (Pl. Obj., ECF No. 48 at PageID.448 [emphasis in original]). Hence,
Plaintiff’s “objection” is denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. Because this action was filed in forma pauperis, this Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this decision would not be taken in good
faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007). Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 48) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 47) is APPROVED and
ADOPTED as the Opinion of the Court.

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IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
32) is GRANTED IN PART and DENIED IN PART for the reasons stated in the Report and
Recommendation. Specifically, summary judgment is GRANTED to Defendant Ross on the
retaliation claims stemming from the first misconduct on May 19, 2016, and the misconduct on
November 19, 2016; summary judgment is GRANTED to Defendant Lumsden on the retaliation
claim stemming from the December 14, 2016 misconduct, and Defendant Lumsden is
DISMISSED from this case; and summary judgment is DENIED on Plaintiff’s remaining claims
in this case that (1) Defendant Ross retaliated against him when he issued the second misconduct
on May 19, 2016, and (2) Defendant Ross retaliated against him when he issued the misconduct
on September 18, 2016.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision would not be taken in good faith.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: March 13, 2019

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